The military applies the exclusionary rule vigorously to evidence obtained from a search that was conducted without proper command authorization. The Fourth Amendment protects service members from unreasonable searches and seizures. In the military context, a “search authorization” issued by a commander is the equivalent of a search warrant issued by a civilian magistrate. For this authorization to be valid, the commander must have probable cause to believe that evidence of a crime is located in the place to be searched.
If a search is conducted without this required authorization, or if the authorization was not based on probable cause, the search is illegal. A military defense attorney will file a motion to suppress any and all evidence that was seized as a result of that illegal search. This motion is a formal request to the military judge to exclude the evidence from the court-martial. The attorney will argue that the evidence was obtained in violation of their client’s constitutional and military due process rights.
Under the “fruit of the poisonous tree” doctrine, not only is the evidence directly seized during the illegal search suppressed, but any other evidence that was later discovered as a direct result of that initial illegal search is also suppressed. If the military judge grants the motion to suppress, the prosecution is legally barred from using that evidence against the accused at trial. This exclusionary rule is the primary remedy for an illegal search and is a powerful deterrent that ensures commanders follow the proper procedures before intruding on a service member’s privacy.